Justice Antonin Scalia Takes on Overcriminalization
February 23, 2009
Timothy Lynch of the Cato Institute has outdone himself with the latest collection of essays he has compiled. In In the Name of Justice, "Leading
judges and legal scholars explore the state of criminal law today and
offer compelling examinations of key issues, including suicide
terrorism, drug legalization, and the vast reach of federal criminal
liability." I'm reading Judge Alex Kozinski's essay on overcriminalization entitled, "You're (Probably) a Federal Criminal."
You may purchase your own copy from Amazon.com or the Cato Store.
Thanks to Jeremy Richey I learned about the American University Law Review's recent, and most excellent, symposium on overcriminalization. Entitled "Overcriminalization: The Politics of Crime," it features the following articles (including two from the White Collar Crime Profs):
OVERCRIMINALIZATION: THE POLITICS OF CRIME
Overcriminalization: The Politics of Crime
Ellen S. Podgor
Jurisdiction and Separtion of Powers Strategies to Limit the Expansion of Federal Crimes
John S. Baker, Jr.
Ethics and the Problem of White Collar Crime
Targeting Legal Advice
Peter J. Henning
The Overcriminalization Phenomenon
The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization
Sara Sun Beale
Defining Overcriminalization: Through Cost-Benefit Analysis: The Example of Criminal Copyright Laws
Geraldine Szott Moohr
Overcriminalizing: An Agenda for Change
I hate the PATRIOT Act. Well, not really. Mostly, I hate talking about the PATRIOT Act. So few people have read it, and thus, the PATRIOT Act is - depending upon whether you ask readers of the Times or viewers of FoxNews - downright evil or downright saintly.
Professor Kerr often sensibly defends the PATRIOT Act. But his recent remarks either show that he's way off, or that prosecution- and defense-minded people will never agree on what abuse means. Take a recent DOJ report.
Prof. Kerr blogged approvingly of a recent DOJ Office of the Inspector General report on PATRIOT Act abuses and noted:
These days, the DOJ OIG report comes and goes with no fanfare or press attention. Why? Because the DOJ isn't finding much in the way of abuses, and isn't finding anything at all related to the Patriot Act.
Ken Lammers humorously impeached the report: "Fox: All Safe in PATRIOT Act Hen House." But he didn't list any PATRIOT Act abuses. There's a recent story that I think is a clear-cut abuse of the PATRIOT Act. N.J. Man Indicted in Laser Beam Case.
David Banach had recently purchased a laser pointer. To demonstrate to his daugher how it worked - and perhaps to demonstrate to his daughter that he lacked any common sense - Mr. Banach pointed the laser at airplanes. Utterly silly and downright stupid? Yes. An act of terrorism? The FBI didn't think so:
The FBI acknowledged the incident had no connection to terrorism but called Banach's actions "foolhardy and negligent."
When agents went to interrogate Mr. Banach, he further evidenced his lack of common sense by not only talking to the agents, but by lying to them. Quite stuipid. And quite felonious.
But instead of charging Mr. Banach will a 1001 count (lying to federal agents is a felony), the government has charged him with anti-terrorism provisions of the PATRIOT Act. The Indictment reads:
Banachdid knowingly and willfully interfere with, disable, and incapacitate a driver, captain, and person, namely aircraft pilots, while those aircraft pilots were employed in operating and maintaining a mass transportation vehicle, namely the Aircraft, with reckless disregard for the safety of human life.
In violation of Title 18, United States Code, Sections 1993(a)(5), 1993(b), and 2.
Does anyone with any common sense or common decency really think Mr. Banach was trying to disable an airplane? Although I agree that someone who pointed a laser beam at an airplane while goofing off with his daugher and lied about it should face a 1001 prosectuion, I think that charging him under an anti-terrorism law is clearly abusive.
The guy is more like Bozo the Clown than Osama bin Laden. And the law should be able to charge Bozo and Osama appropriately. Charging Mr. Banach under the PATRIOT Act is abusive. Obviously, the Department of Justice would disagree.
So then, how can I trust a report investigating PATRIOT Act abuses when we can't even agree on what abuse means?
Prof. Reynolds (aka Instapundit) has an excellent column on overcriminalization here.
Where once "felony" meant things like murder, rape, or armed robbery, now it includes things like music piracy, or filling in potholes that turn out to be "wetlands." As the title to a recent book edited by Gene Healy notes, we've achieved the criminalization of almost everything.
Which means, in fact, the criminalization of almost everyone, too -- if you haven't been convicted of some felony or other, it's probably because no prosecutor has tried to put you away, not because you haven't committed one, whether you realized it at the time or not.
Do read the full column.
(Hat tip: CrimProf Blog)
He woke up at his usual time of 6 a.m., rubbed his eyes, and brewed a pot of coffee. "Man, I'd be finished without this stuff," he chuckled to himself.
After a hectic morning, he decided on a two martini lunch: "It's to calm the nerves," he said to the wide-eyed waitress.
Finished with work, he heads home, where he enjoys a thick steak, salted baked-potato, and creme brulee.
For his post-dinner pleasure, he winds down with a good book, a courvoisier and a Cohiba his friend snuck in after vacationing in the Dominican Republic.
At around 9 p.m. he popped a little blue pill, since things haven't worked the same since he turned 50.
Afterwards, he and his wife are watching the evening news when a headline flashes at the bottom of the screen. "BREAKING STORY: Man caught with 50 kilos of marijuana arrested."
"Thank God," he says to his wife, "that the police are keeping these dope pushers off the streets."
We can best understand how wrong the government is in Raich if we take a brief look at first principles, and then observe how our first Congress applied those first principles.
Congress' enumerated powers did not include a police power.
It is axiomatic that Congress is limited to enumerated powers. M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961) ("The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”) By definition, to enumerate some things is to exclude others. The Founders listed – and therefore limited – Congress’ power to define and punish crimes. Art. I, § 8, Cl. 6 (counterfeiting U.S. currency); Art. I, § 8, Cl. 10 (piracies and felonies committed on the high seas); Art. III, § 3, Cl. 2 (treason). In each of these areas, Congress has a substantial and legitimate interest since only it may coin money; the high seas are of national import; and one can commit treason only against his country, not his state.
The first Congress recognized constitutionally imposed limitations on its powers.
The first Congress was mindful of enumerated powers and thus enacted only a few federal criminal offenses, mostly dealing with offenses involving felonies on the high seas, crimes committing on or against federal property, and conduct obstructing justice in federal cases. See "An Act for the Punishment of certain Crimes against the United States." 1 Stat 112 (1790). A close reading of the first federal crimes is telling.
Sections 1 & 2 punish treason against the United States. Id. at 112. Sections 3 & 7 do not punish the state crimes of murder or manslauther. Rather, it only criminalizes murders committed in "any place *** under the sole and exclusive jurisdiction of the United States," id. at 113, and Section 5 punishes the theft from the federal government the body of an executed criminal. Id. Section 6 imposes an affirmative duty on a witness to certain listed crimes against the United States to relay his knowledge to the police. Id. Section 7 covers arson, but again, only against a building "under the sole and exclusive jurisdiction of the United States." Id (emphasis added). Section 9-13 define and punish crimes on the high seas and rivers. Id. at 114-115. Section 14 criminalizes counterfeiting. Id. at 115. Section 15 punishes acts affecting an official paper of a federal court. Id. at 115-116. Sections 16 & 17 punish theft-related acts occurring on any place under the "sole and exclusive jurisdiction of the United States." Id. at 116. Sections 18-20 cover perjury committed in federal court. Id. at 116-117. Section 21 covers bribes against federal officials. Id. at 117. Section 22 criminalizes resisting arrest, but only where a federal official is the arresting officer. Id. Finally, Section 28 punishes violence against persons under the protection of the United States. Id. at 118.
The first criminal code teaches us that Congress may criminalize
conduct in only two discreet circumstances. First, Congress may criminalize conduct pursuant to a textual grant of power over criminal acts, e.g.,
Art. I, § 8, Cl. 6; Art. I, § 8, Cl. 10; Art. III, § 3, Cl. 2, above. Second,
Congress may criminalize conduct where the conduct occurs in a place
within the exclusive domain or control of the federal government. Thus, Congress was careful to cover acts committed only in places under the sole and exclusive jurisdiction of the
United States. Indeed, the second source of power is implied, since a state would lack
authority to punish acts against the United States, e.g., a state could
not criminalize theft of mail.
The non-commercial use of privately-grown medical marijuana does not fall under either of those two circumstances. Indeed, though the first criminal code teaches us much about federal power, it also teaches us about proportion.
Congress initially punished only serious crimes like rape, robbery, and murder. Here, the federal government wants to punish a woman for self-medicating. Not only is the the federal government's attempt unconstitutional, it's also uncommonly silly.
We Americans face threats from domestic and international terrorism. Should our government's scare resources go towards fighting real dangers like the potential for biological terror on our homeland, or should Congress slay paper tigers, or is Ms. Raich's cases, paper angels?
If I were their lawyer, I'd be pleased with this result:
Ocala boys arrested for violent drawings to get counseling. Per the South Florida Sun-Sentinel (Feb. 3, 2005):Two boys accused of threatening a classmate by making violent drawings of stick figures will avoid felony prosecution by joining a counseling program, officials said.
The boys, ages 9 and 10, are set to take part in a five- to seven-month intervention plan that includes anti-aggression and anti-bullying counseling, said Robin Arnold, a Marion County supervisor for the state attorney's office.The boys' parents, who also must visit with counselors, agreed to the deal, the state attorney's office said Wednesday.With the criminal charges dropped, the boys are free to return to school.
Prior post here.
There have been a few developments, and some constructive editorializing, since we last discussed the two third-graders who were arrested in Ocala, Florida, for drawings that the school authorities and police deemed to be threatening the life of another student. (Mike posted here, attracting a lengthy comment or two from me.)
WFTV.com reported (Jan. 31, 2005):
The Marion County School District has reassigned two third graders to another school after they drew threatening pictures of a classmate.
The boys were suspended for four days and were allowed to return to school Monday, but only one chose to do so.
A judge issued a "no contact order" for the two special education students, which means they can't return to the same class as the victim.
(WFTV is holding a survey Was Drawing The Pictures A Criminal Act?; so far, 31% of respondents said yes.)
In an editorial titled "Call the parents before police," the St. Petersburg Times states (Feb. 2, 2005) notes that
"Ocala police have defended their decision by saying they saw three signs of possible trouble: the boys had acted to intimidate their victim all year; one of the arrested boys had previously stabbed a different student with a pencil and the drawings reminded some of the early warning signs seen before the shootings at Columbine High School in Colorado.
"But another motivation for the arrest emerged during a conversation Monday with Ocala Police Sgt. Russ Kern. "(If an attack occurred), no one wanted to be the one left saying, "We saw this and we did nothing.'"
The editorial concludes:
In the Ocala case, charging such young children with a felony for their drawing aggravates a problem rather than solves one. The choice was not between doing nothing and calling in the police. There are instances when police are needed to handle violent students and charge them with crimes, but the available evidence indicates this is not one of them.
Sun-Sentinel columnist Sherri Winston concludes (Feb. 2, 2005):
"Something must be done to tame the Zero Tolerance virus that has been let loose in Florida schools. Common sense is the likely vaccine, but much like flu shots were a few months ago, common sense remains in short supply.
"Once upon a time, art and journals were considered a healthy way for young people to express anger and frustration they couldn't show in their regular lives. . . .
"But as for the kids in Ocala, maybe that drawing was their way of saying, "If it weren't wrong, I'd like to knock you in the head, but I'm not going to. I'm just going to draw you a picture!"
"No matter their intent, with the police involved and media buzzing, two grade-school kids will be forced to adapt adult demeanors and rationales to their childish behavior. I think that's too much to ask."
Winston calls the drawings "a prank," but I believe that intentionally scaring another child with threats of death is more than a prank. This was not merely a matter of boys drawing a scene with generic stick characters fighting, or depicting themselves as heroes.
The threatened boy needed to know that the authorities took his fears seriously -- especially given prior incidents of bullying by the pair. The school needed to make it plain to the students that their conduct was serious and unacceptable. Calling in the police to talk with the boys, in order to help them understand the graveness of the situation may have made sense -- as surely would have happened if the school had its own assigned "community" officer. Clearly the parents should have been called, too. However, arresting the two third-graders for a felony -- or any offense, unless there are more facts that we do not know -- was excessive.
"Zero Tolerance" should never mean Zero Judgment or Zero Common Sense.
More and more people are reaching Crime & Federalism after googling overcriminalization. Overcriminalization is becoming a popular topic, and I'd like to provide the best information available.
Thus, Overcriminalization. At Overcriminalization I want to provide links to the best law review articles, op-eds, news stories, and verifiable anecdotes on the tendency of the government to criminalize everything. Under this broad heading would include schools' "zero tolerance" policies.
Overcriminalization is not going to be a blog as such: It will be much less ambitious. Mainly, I want to link to the best materials on overcriminalization. It will be much more like Ashcroft v. Raich, where you can see that my goal is primarily to provide the reader with case information.
Please e-mail me (or leave in the comment section to this post) your suggestions.